Indian Judiciary Needs to Fix its Plagiarism Problem

BYGAUTAM BHATIA .. On December 1, the Spicy IP blog reported that a division bench of the Delhi High Court had plagiarised thirty-three paragraphs of its judgement in Roche v Cipla from a law review article written by Shwetasree Majumder and Eashan Ghosh in the Queen Mary Journal of Intellectual Property. In an order passed subsequently, the high court acknowledged the truth of the report, apologised to the authors, and laid the responsibility at the door of an intern who had been charged with writing a précis of the facts of the case.

As has been observed already, the plagiarised portions only involved the facts of that case, and so this is not as big an issue as it might otherwise have been. It is a good opportunity, however, to start a long-overdue conversation about plagiarism in court judgements. The problem of plagiarism is a serious and long-standing one. Pages of law reviews are full of examples. Here, I extract two of the most egregious ones.

“Any right to privacy must encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing.”

This formulation is directly lifted from the 1973 American Supreme Court judgment in Paris Adult Theatres v Slaton, where in his majority opinion, Chief Justice Warren Burger observed:

“This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and childrearing.”

As a matter of fact, Slaton was an entirely different case, decided in the context of obscenity. As such, its rather clunky definition of privacy was entirely ill-suited to a case about state surveillance (which Gobind was), and its continuous usage since that time has been at least one of the contributing factors to our privacy jurisprudence being, at this point, a near-hopeless muddle.

“It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked”.

This formulation is lifted from the American Supreme Court’s 1972 judgment in Grayned v Rockford, where Justice Thurgood Marshall observed:

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”

The Indian Supreme Court has replaced “due process” with “legal jurisprudence”, omitted “juries”, and cut out a couple of lines; the rest of it remains the same.

There is, I would suggest, a serious problem when the seminal Indian case on privacy, and the Indian case that laid down the principle of vagueness, both copied their core formulations from other judgements without attribution. Quite apart from the fact that foreign jurisprudence should be adopted only after careful consideration of comparative contexts, there is undoubtedly a significant ethical issue.

Furthermore, while the responsibility for plagiarised summaries of facts may be safely fobbed off upon nameless interns, it is rather more difficult to do that when it comes to fundamental propositions of constitutional law.